Opinion
(June Term, 1829.)
A slave was given by deed to A, "saving and reserving the use of said slave during my (the donor's) natural life, and the natural life of my (the donor's) beloved wife." Held, that the limitation over after the life estate was too remote, and therefore void at common law.
DETINUE for several slaves, the issue of the negro woman Celia, mentioned in the bill of sale hereinafter mentioned.
Devereux, for the defendant.
Kinney, for the plaintiff.
FROM PERQUIMANS.
On the trial a special verdict was found, setting forth the following facts, viz., that Thomas Baker, being the owner of the slave, Celia, on 2 October, 1802, executed the following bill of sale:
"Know all men by these presents, that I, T. B., in consideration of the affection I have for my daughter, Elizabeth Baker, together with the sum of five shillings, etc., have and do give and sell my said daughter Elizabeth one negro girl slave named Celia (saving and reserving the use of said slave during my natural life and the natural life of my beloved wife). To have and to hold said negro girl slave to my said daughter Elizabeth, her heirs and assigns forever. In witness, etc."
Elizabeth Baker, the donee, afterwards married the plaintiff's testator, William R. Sutton. After the death of Thomas Baker, his wife put the slave into the possession of the plaintiff's testator, saying that she would belong to him at her death; but she did not relinquish any right to the slave which she had for her life, and the plaintiff's testator held the slave only under the authority of the wife of Baker. Sutton, the husband of Elizabeth, the donee, died, leaving his wife and the wife of the donor surviving him. After his death the widow intermarried with the defendant.
Upon these facts his Honor, Judge STRANGE, thinking that (186) the case came within the principle of Vass v. Hicks, 7 N.C. 493, and not within that of Graham v. Graham, 9 N.C. 322, rendered judgment for the plaintiff, from which the defendant appealed.
The case was submitted without argument.
The cases on this subject are not altogether reconcilable. Parol gifts by delivery, reserving life estates, are contradictory and inconsistent, in the nature of things. Property cannot be delivered, and retained at the same time. If there is a delivery there can be no reservation of a life estate. Of this kind were Duncan v. Self, 5 N.C. 466, and Vass v. Hicks, 7 N.C. 498.
At common law there could not be a limitation of personal chattels after a life estate created by deed. It was also held that in a gift or limitation of slaves, after a life estate reserved by the donor, the limitation was not good, because the life estate might be lawfully reserved, and the limitation over on that account was too remote, and this was in conformity (as was supposed) with the principle before laid down, that there could not be a limitation of personal chattels after a life estate. Black v. Beattie, 6 N.C. 240; Graham v. Graham, 9 N.C. 322; Foscue v. Foscue, 10 N.C. 538.
Whether it would not have been more correct to say the reserved life estate was void, as being inconsistent with the grant, and that the gift or limitation passed the property in praesenti, it is too late, and, of course, unnecessary to decide, because too much property depends upon those decisions, and because the Legislature have authorized limitations of slaves after life estates.
We must, therefore, conclude that the limitation over, after an estate reserved to the donor, Thomas Baker, and his wife, for their lives, is void; and, therefore, that nothing vested in Elizabeth, (187) the daughter. The judgment must be reversed, and judgment entered here for the defendant.
PER CURIAM. Reversed.
Cited: Morrow v. Williams, 14 N.C. 264; Hunt v. Davis, 20 N.C. 37; Newell v. Taylor, 56 N.C. 376; Dail v. Jones, 85 N.C. 225.